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California's Wage Order Number 9

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California's Wage Order #9

California's Wage Order #9 is a regulation enacted by the California State Department of Industrial Relations in order to make sure workers in the state transportation industry have adequate meal and rest periods. It took effect July 1, 2004. Before I proceed further, please note that this Wage Order mainly applies to non-unionized employees in this sector ( unionization is one of the biggest factors in privatization of transit ) ; the vast majority of union employees have meal and break times specified in their labor contracts, and therefore do not fall under the auspices of this regulation. The two components of the Wage Order that have caused the most controversy in public transit have been Section 11, Meal Periods, and Section 12, Rest Periods.

Section 11 Meal Periods

Section 11 mandates that a 30 minute meal periods must be provided to any non-management employee who works greater than 5 hours in a work period, with the exception that the period may be waived by mutual consent of the employer and the employee if the total work period is 6 hours or less. During the meal period the employee must be relieved of all duty.

Section 12 Rest Periods

In addition to the meal period in Section 11, Section 12 mandates that a 10 minute rest period must be given for every four hours the employee works. This rest period must, as much as possible, be in the middle of the four hour section. If a work period if 3 1/2 hours or less then the rest period need not be provided.

Penalties

The order states that for each day any rest or meal period is not provided the employer must pay the employee an amount equal to one hour of the employee's wages.

Difficulty of Application to the California Transit Industry

The vast majority of labor regulations, the above mentioned ones included, are meant to apply to the usual situation of an employee working in one location for the entire workday. The owner of a factory that has a lunch/break room will easily be able to provide lunch and rest periods, as will a transit agency in regards to its mechanics, service station attendants, and other onsite employees. The difficulty with a transit agency being able to put into effect the above regulations in regards to its drivers is that bus drivers are in many different places throughout the whole day, and thus are unable to access such break rooms as may be in the agency's garage. It will cost the average transit agency a lot of money to bring drivers from the varied reaches of its service agency to a particular area for a meal or rest time - vans will have to be dispatched to drive the operators to the break room, which could be a trip of 20 minutes or more, and replacement drivers will have to fill in for the drivers on lunch. Transit agencies that operate a downtown hub system would find it easier to implement this provision - if the hub is served by all routes then eventually all drivers will naturally find themselves there.

Even if the above difficulty is taken care of, a potentially even greater difficulty remains: the fact that bus trips are frequently late means that in order to make sure that a 30 minute lunch period or a 10 minute break period is taken a 45 minute lunch period or a 20 minute break period may need to be scheduled. Of course, this additional time drives up costs even more. If you need to, refresh your memory on how bus schedules are written .

Traditional Transit Employee Breaks

If the normal way of taking breaks is impractical in a transit environment, then how do transit drivers get breaks? While some agencies schedule breaks in the above described manner ( Toronto and Montreal come to mind), the more usual way to schedule drive breaks in the transit industry is to schedule break time at the end of each run in the form of layover time. Of course, if the bus is late than the employee may not receive any break time. A usual good rule of thumb is to schedule enough layover time so as to make the total layover time greater than 15% of the total amount of time for a given block. Doing this will help to ensure that the total amount of break time in a workday for a driver of a straight run will be greater than 50 minutes (equal to the 30 minute lunch period plus the two 10 minute rest periods). In this manner the intent of the Wage Order (adequate rest time) will be achieved. Note that the possibility of losing break time due to late running of the bus is compensated by the fact that break time awarded in this manner is paid break time, unlike (for the most part) break times taken in an onsite building.

Potential Changes to Wage Order #9

The Department of Industrial Relations is currently investigating whether some of the more restrictive aspects of Wage Order #9 should be applied more broadly to include public drivers of commercial vehicles regardless of whether the drivers are members of a collective bargaining agreement. One major argument for extending the wage order in this manner would be to improve safety - the theory being more rested drivers are safer drivers - but driver fatigue is not a large factor affecting the safety of transit . If this order were extended to include these drivers, then the transit agency would have to set aside regularly scheduled meal and rest breaks for the drivers at a standard location. While transit coach operators frequently have justifiable complaints about inadequate break time ( breaks are one of the top five driver employment issues ) , mandating these breaks in an industry that has far reaching routes and widely diverging amounts of time required to complete the routes will definitely increase costs of the transit agencies by requiring the acquisition of additional break rooms in many locations throughout the system and the non-revenue transportation of drivers to these break rooms. These increased costs will ultimately be borne by the traveling public in the guises of increased fares, service reductions, or both.

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